“Buffy vs Edward” remix unfairly removed by Lionsgate

The model "fair use video" used by the US Copyright Office is a casualty of YouTube's Content ID system.

Jonathan McIntosh is a remix video artist, new media teacher, and fair use advocate. All of his recent remix projects can be found on his website rebelliouspixels.com. You can also follow him on Twitter @radicalbytes.

Jonathan McIntosh.

It has been three and a half years since I first uploaded my remix video “Buffy vs Edward: Twilight Remixed” to YouTube. The work is an example of fair use, transformative storytelling which serves as a visual critique of gender roles and representations in modern pop culture vampire media.

Since I published the remix in 2009 it has been viewed over 3 million times on YouTube and fans have translated the subtitles into 30 different languages. It has been featured and written about by the LA Times, Boston Globe, Salon, Slate, Wired, Vanity Fair, and Entertainment Weekly, and it was discussed on NPR radio. It was nominated for a 2010 Webby Award in the best remix/mashup category. The video is used in law school programs, media studies courses, and gender studies curricula across the country. The remix also ignited countless online debates over the troubling ways stalking-type behavior is often framed as deeply romantic in movie and television narratives.

“Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth.”

—Recommendation of the Register of Copyrights, October 2012 (Page 133)

Despite the clear and rather unambiguous fair use argument that exists for the video, Lionsgate Entertainment has now abused YouTube’s system, filed a DMCA takedown, and had my remix deleted for “copyright infringement.” Below is a brief chronicle of my struggle to get "Buffy vs Edward" back on YouTube where it belongs.

On October 9th, 2012 I received a message from YouTube stating that "Buffy vs Edward" had “matched third party content” owned or licensed by Lionsgate and “ads may appear next to it.” Lionsgate acquired ownership of the Twilight movie franchise in 2012 (via the purchase of Summit Entertainment for 412 million dollars) so the claim appeared to be directed at the 1 minute 48 seconds of footage I quoted from the first Twilight movie in my 6 minute remix.

I always turn all ads off on my remix videos and never profit off them. But sure enough, when I checked my channel, Lionsgate was monetizing my noncommercial fair use remix with ads for Nordstrom fall fashions which popped up over my gender critique of pop culture vampires. Incidentally, this copyright claim also prevented the remix from playing on all iOS devices like iPads and iPhones because they are not "monetized platforms."

I thought perhaps YouTube’s Content ID System had automatically tagged the video and didn’t understand that it was a fair use. In the hopes that I could get the mistake cleared up I immediately used YouTube’s built-in process to register a fair use dispute.

Less than 24 hours later, however, I received another message from YouTube informing me that Lionsgate had reviewed my fair use claim and rejected it, reinstating their claim on the remix and again monetizing the video with intrusive pop-up ads.

Concerned at what appeared to be a blatant disregard for fair use previsions, I contacted a lawyer at New Media Rights named Art Neill. New Media Rights drafted a rather detailed 1,000 word legal argument citing case law and explaining how "Buffy vs Edward" was in fact about as clear of an example of fair use as exists. This included fair use arguments for the nature and purpose of the transformative use, amount of copyrighted material used, and market effect. YouTube’s built-in system now allows for a second round of copyright disputes, called an appeal process. So I returned to YouTube and filed an official appeal of the reinstated bogus copyright claim by Lionsgate using the fair use argument and legal language from my lawyer. (See the full text of the fair use argument we made here.)

On November 26th, 2012, after a month of waiting, I finally got a response stating that Lionsgate had decided to release their copyright claim on my remix. Victory!

Or so I thought.

That same day I noticed another notification from YouTube saying that my Buffy vs Edward remix had “matched third party content” owned or licensed by Lionsgate and that ads may appear on my video. Wait, what? Deja-vu. Hadn’t I just spent nearly 2 months dealing with exactly that? On closer inspection this new claim was for “visual content” owned by Lionsgate and the claim I had just fought and finally won had been for “audiovisual” content. No further information was provided as to what the difference was between the two claims or what content exactly was supposedly infringing.

It appeared as though Lionsgate just filed two separate infringement claims on the same piece of media. Confused and slightly frustrated I once again embarked on repeating the same dispute process as before. I filed my fair use dispute via YouTube’s built-in form exactly as I had the first time around.

Again, just like the first time, it was rejected by Lionsgate within 24 hours and they reinstated their claim on the remix.

So I filed my second long-form appeal using YouTube’s system, again making the detailed legal arguments crafted by my lawyer at New Media Rights which lay out very clearly all the fair use arguments. And I waited for a response.

On December 18th, I received notification from YouTube that Lionsgate had again ignored my fair use arguments, rejected my appeal and this time had the remix deleted from YouTube entirely.

I was dumbfounded. And to add insult to injury I was now locked out of my YouTube account and had a copyright infringement “strike” placed on my channel.

In order to regain access to my account I was also forced to attend YouTube’s insulting “copyright school” and take a test on fair use. Since I’ve been giving lectures on fair use doctrine for artists and video makers for a number of years this was a breeze, but it was still insulting because my video was not infringing in the first place.

Once I was allowed back into my account I found that YouTube is now penalizing me for this “strike” by preventing me from uploading videos longer than 15 minutes.

I consulted my lawyer again, and following the advice on YouTube’s copyright FAQ page, he reached out to the representatives of Lionsgate who administer their online content and had issued the DMCA takedown. What he found out from that correspondence was worrying.

Representatives of Lionsgate, a company called MovieClips that claims to manage Lionsgate’s clips on YouTube, confirmed in an e-mail to New Media Rights that they had filed a DMCA takedown on Buffy vs Edward because I did not want them to monetize the remix. In fact this is exactly what the company’s representative, Matty Van Schoor, said in a response e-mail to New Media Rights on December 20, 2012:

The audio/visual content of this video has been reviewed by our team as well as the YouTube content ID system and it has been determined that the video utilizes copyrighted works belonging to Lionsgate. Had our requestes [sic] to monetize this video not been disputed, we would have placed an ad on the cotent [sic] and allowed it to remain online. Unfortunately after appeal, we are left with no other option than to remove the content.

No other option? How about recognizing it is fair use and dropping the complaint? They did not answer or even acknowledge our fair use arguments via e-mail, despite fair use being raised multiple times. Perhaps this is just the action of a rogue studio, but it hints at a bit of a nightmare scenario for transformative media makers and remix artists. The fear is that fair use will be ignored in favor of a monetizing model in which media corporations will “allow” critical, educational, and/or transformative works only if they can retain effective ownership and directly profit off them.

It appears that Lionsgate is attempting to do just that. What if every time The Daily Show made fun of a Fox News clip, News Corp. was allowed to claim ownership over the entire Daily Show episode in order to monetize it?

There are limitations on takedowns. For instance, as Neill from New Media Rights points out, the DMCA Section 512 prohibits knowingly, materially misrepresenting any information in takedown notices. At least one court, hearing about the baby dancing to Prince in the Lenz case, has even required that DMCA takedown notice senders consider fair use before sending a takedown.

Buffy vs Edward has now been offline for 3 weeks. Over the past year, before the takedown, the remix had been viewed an average of 34,000 times per month.

Since none of YouTube’s internal systems were able to prevent this abuse by Lionsgate and our direct outreach to the content owner hit a brick wall, with the help of New Media Rights I have now filed an official DMCA counter-notification with YouTube. Lionsgate has 14 days to either allow the remix back online or sue me. We will see what happens.

This is what a broken copyright enforcement system looks like.

One last note, New Media Rights has offered me invaluable advice and guidance throughout this battle. They are a small, non-profit, two-lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can please consider donating to them here.

PS: Until we can get the takedown reversed, you can still watch the HTML5 pop-up video version of Buffy vs Edward here.

179 Reader Comments

You can be sure I'll continue to ask Senator Franken to refuse to accept money from big content and instead put his foot in their ass should they offer him any. (Offer him money, I mean. I wouldn't put it past them to offer politicians gorgeous ass in return for favors). Even if there is ostensibly no strings attached for their "donations."

I hope you update this 2 weeks later. I wouldn't be surprised to see that your video has been reinstated if only due to the coverage you are able to get for it.

That said, we can't realistically expect a corporation to skip an opportunity to monetize everything it can get it's hands on. Illegal doesn't matter if they can get away with it. The fault lies with: 1) the government for not creating a system that, in practice, punishes abuse of the DMCA and attempts to ignore fair use, and 2) the voters for not making kowtowing to Hollywood a vote-looser.

This is clearly systematic abuse of DMCA, so shouldn't Lionsgate lose rights to file DMCA takedown-notices? I'm not a U.S. citizen, but I've heard that there is a clause there that literally says that abuse of the system loses all rights to it.

3 Society forgetting that the entire system of public companies only exists at the sufferance of (real) people on the proviso that said companies provide a nett benefit to society. Any company that fails to do so has no moral or legal right to continue to exist (assuming lawmakers have the gonads to carry through their people's interest, which is the kick).

I have had the same experience and eventually took down my own video (which was unlikely to be watched anyway, given it was a few years old) in protest against monetisation of my video.The infringing content, I can only imagine, was (fuzzy) background audio played either during a 60 second timeout or during the 5 minute half time period of a local sports match I filmed. The total video length was longer than 60 minutes (ie the full match).The review system is pointless as I'm certain that the only human in the chain is the uploader trying to defend their fair use.

I like how the copyright owners are judge, jury, and executioner in this so called appeals process. How the heck is that actually going to work as a proper appeals process. In fact since they are using third parties it never even gets seen by the actual copyright holders legal department I bet. Unfortunately this will continue until it goes to an actual court and then they will still do it because most of the people affected do not have the resources to drag this to court.

I can't help but think that this article would have been a lot more pertinent if it came from 14 days in the future. As broken as the copyright system might be, the counter-notice is a potent retort: would Lions Gate really care to sue over this? I suspect that the video will be restored shortly.

The OCILLA (DMCA) procedure has disadvantages. Chiefly, it suppresses the content for a substantial period, regardless of the merit of the complaint—and thus can be used to chill creative expression of a time-sensitive nature. Also, the penalties for misuse of a takedown are nearly impossible to enforce cheaply and quickly. Nevertheless, I don't think those limitations are especially pertinent to this particular case.

I think the more compelling discussion concerns the degree to which the content owner and YouTube are able to monetize videos under these circumstances. Less astute users are likely to accept this monetization as a compromise, in lieu of fully asserting their fair use rights as the author has done. Is that a reasonable business practice, given the circumstances?

Nice Buffy/Twilight mashup. I've never watched anything about Twilight before this. You have now inspired to watch some more in the hopes of picking up dating tips. If the popularity of Twilight amongst girls is anything to go by, I'm confident that I'll be bringing all the girls to my yard in no time.

I note that on Lionsgate's website, under contact details for investors they state:

Quote:

For general information about Lionsgate, please call our Santa Monica headquarters at 310-449-9200.

For Investor & Corporate Media Inquiries, please contact Peter Wilkes, Senior Vice President, Executive Communications & Investor Relations, at (310) 255-3726. Mr. Wilkes handles inquiries from institutional and retail investors and analysts as well as corporate media requests. Please do not contact his office for general inquiries, which should be directed to 310-449-9200.

Shareholders may click on this Investor Relations link to email questions.

They don't appear interested in hearing from the public about anything, although they're on Twitter with a number of addresses including LionsgateNews, lionsgatemovies, LionsgateMedia, TheHungerGames, and lionsgate.com.

I don't really understand what's broken about this. The two of you disagree on what constitutes fair use. YouTube is just doing their job, in accord with the DMCA to retain their safe harbor status. They filed a DMCA takedown notice; you filed a counter-notice under the belief that your video is fair use.

I don't see the problem here. Should YouTube just decide on their own what is fair use or not? That's for courts to decide, not YouTube. And if the two of you want to take it to court to have it decided, then that's where it's going.

The author suffered damages to his YouTube account despite this being an obvious case of fair-use and his numerous attempts to correct the scenario. Even after the video was restored the first time, a take-down notice was filed again by the same entity with a nearly identical complaint. Unless Lionsgate is held responsible and punished (especially considering they profited off of it via advertising), something is clearly wrong with the system.

I don't really understand what's broken about this. The two of you disagree on what constitutes fair use. YouTube is just doing their job, in accord with the DMCA to retain their safe harbor status. They filed a DMCA takedown notice; you filed a counter-notice under the belief that your video is fair use.

I don't see the problem here. Should YouTube just decide on their own what is fair use or not? That's for courts to decide, not YouTube. And if the two of you want to take it to court to have it decided, then that's where it's going.

What's broken is the assumption of guilt until proven innocent, and that action is taken without first consulting the legitimate content owner.

Then of course there's the decision from YouTube to brand the content owner a thief and have them undergo "rehabilitation". YouTube has decided to make things easy for large content owners, and extremely difficult for the average poster.

Now that I've watched the video, I am extra happy never to have seen Twilight. I was vaguely aware that it was marketed at Christian teen girls, and it appears to be extremely dangerous to that target audience. I hope they don't generally walk away thinking "this is how relationships work", and "stalking means he likes me".

Put real penalties in place for abuse of DMCA takedowns. Start at $1000 per day the video is offline, and scale up depending on how many views it averages.

Get YouTube on the hook instead so that they make sure the request is legit in the first place.

That would require work, killing YouTube's business model. That's why they gave industry heavyweights open slather on YouTube content. Of course, it's still placing the responsibility in the wrong place. It sits with the content owner to prove that their rights have been breached.

That sucks, and sounds very familiar. On the plus side, one couldn't ask for a better showcase of the system's longstanding flaws. Sadly, if the recent NASA video debacle didn't spur Google to fix their shit, this probably won't either.

Now that I've watched the video, I am extra happy never to have seen Twilight. I was vaguely aware that it was marketed at Christian teen girls, and it appears to be extremely dangerous to that target audience. I hope they don't generally walk away thinking "this is how relationships work", and "stalking means he likes me".

Thumbs up on the remix, big thumbs down to Lionsgate.

Edit: Missed a "t".

There's very little that hasn't been said on that topic already by all manner of bloggers, professional councilors and shrinks, and professional literary critics.

I and my siblings are doing our damndest to make sure my niece gets hooked on Tolkien and the Wind in the Willows and Alice's Adventures in Wonderland and Looking Glass and the Wrinkle in Time series and the like instead of that nonsense.

Her mother might be a bit annoyed that I'm sending her books somewhat above her reading level every christmas and birthday and introducing her to anime and getting her hooked on tetris and showing her how to work an abacus and BASH commandline, but by Crom, she's in a family of geeks and we're all working to mold her into one as well.

What? No. That won't fix a thing. The best thing to do is to make this public and not let companies hide. I read this post this morning on the original blog, it was actually my idea to reach out to the author to see if he'd let us publish it here. Sunshine, not avoidance, is the best medicine.

I note that on Lionsgate's website, under contact details for investors they state:

Quote:

For general information about Lionsgate, please call our Santa Monica headquarters at 310-449-9200.

For Investor & Corporate Media Inquiries, please contact Peter Wilkes, Senior Vice President, Executive Communications & Investor Relations, at (310) 255-3726. Mr. Wilkes handles inquiries from institutional and retail investors and analysts as well as corporate media requests. Please do not contact his office for general inquiries, which should be directed to 310-449-9200.

Shareholders may click on this Investor Relations link to email questions.

They don't appear interested in hearing from the public about anything, although they're on Twitter with a number of addresses including LionsgateNews, lionsgatemovies, LionsgateMedia, TheHungerGames, and lionsgate.com.

Oh, and the company is on Facebook.

Do they like pizza? 'Cause I hear they like pizza. A LOT. By the truckload.

Put real penalties in place for abuse of DMCA takedowns. Start at $1000 per day the video is offline, and scale up depending on how many views it averages.

It may be tempting to stoop to their (MPAA's) level, but your actual soul may not let you (assuming you're not one of the living dead).

grimlog wrote:

Nice Buffy/Twilight mashup. I've never watched anything about Twilight before this. You have now inspired to watch some more in the hopes of picking up dating tips. If the popularity of Twilight amongst girls is anything to go by, I'm confident that I'll be bringing all the girls to my yard in no time.

I don't really understand what's broken about this. The two of you disagree on what constitutes fair use. YouTube is just doing their job, in accord with the DMCA to retain their safe harbor status. They filed a DMCA takedown notice; you filed a counter-notice under the belief that your video is fair use.

I don't see the problem here. Should YouTube just decide on their own what is fair use or not? That's for courts to decide, not YouTube. And if the two of you want to take it to court to have it decided, then that's where it's going.

You don't think it's a tad backward? In the US, the presumption is supposed to be of innocence until proven otherwise, This is a case of presumed guilty until the defendant can prove he's innocent. *NOT* the way the legal system is supposed to work in the US.

I thought the daily show model worked because it was fair use of actual News coverage which is afforded those rights. I'm pretty sure I've even seen them forced to put "courtesy of " on the very movie someone is on the show plugging.

Now that I've watched the video, I am extra happy never to have seen Twilight. I was vaguely aware that it was marketed at Christian teen girls, and it appears to be extremely dangerous to that target audience. I hope they don't generally walk away thinking "this is how relationships work", and "stalking means he likes me".

Thumbs up on the remix, big thumbs down to Lionsgate.

Edit: Missed a "t".

There's very little that hasn't been said on that topic already by all manner of bloggers and professional councilors and shrinks alike.

I and my siblings are doing our damndest to make sure my niece gets hooked on Tolkien and the Wind in the Willows and Alice's Adventures in Wonderland and Looking Glass and the Wrinkle in Time series and the like instead of that nonsense.

Her mother might be a bit annoyed that I'm sending her books somewhat above her reading level every christmas and birthday and introducing her to anime and getting her hooked on tetris and showing her how to work an abacus and BASH commandline, but by Crom, she's in a family of geeks and we're all working to mold her into one as well.

(sorry for the tangent)

To whoever voted ^this^ comment down: you sir, are an asshole, and I do not like the cut of your jib. WTF.Anyway, my wife (a teacher) and I treat our nephews and nieces the same way. It's bad enough trying to battle the forces of bad taste, misinformation and FUD with all the forces of fads and marketing arrayed against you. Teenagers, especially teen girls, are the most targeted demographic and appealing to their stupidity and ignorance is too temptingly lucrative for the forces of evil to ignore. The result, of course, is Twilight, Aeropostale, awful gadgets, everything on MTV and half the rest of TV and all the really bad movies you see, and a very special shout-out to One Direction, the most evil and talentless ear-raping boy band to ever come out of a genre completely void of talent or even tolerable existence.There's not much hope of instilling musical taste, the dark side is too strong. But there is no fucking reason in the world for anyone to finish the day not knowing Twilight is utter crap, regardless of how anti-intellectual and un-nerdly a household may be. Springing for copies of Tolkien ain't cheap, but it's not like I'm letting mine out of the house. Legos, video games and custom PCs are even more, but it's not like you can take it with you....

3 Society forgetting that the entire system of public companies only exists at the sufferance of (real) people on the proviso that said companies provide a nett benefit to society. Any company that fails to do so has no moral or legal right to continue to exist (assuming lawmakers have the gonads to carry through their people's interest, which is the kick).

Did you quote this or did you whip it up right now? I like it!Unfortunately a lot of people in business "ethics" will claim that companies ONLY duty is to make money, at the expense of all else really. Fucking greedy shit fuckers.

What? No. That won't fix a thing. The best thing to do is to make this public and not let companies hide. I read this post this morning on the original blog, it was actually my idea to reach out to the author to see if he'd let us publish it here. Sunshine, not avoidance, is the best medicine.

The attention in these comments is mostly directly at Lionsgate and the mercenaries they (and like corporations) hire to prosecute their interests. However it should also be directed at Google (which Ars has done prior to this article). While Google's processes have improved a little, they're clearly still broken.

Thank you, Jonathan! The YouTube content ID system and its potential for abuse by large media companies is truly infuriating. You're helping us all by creating a spectacle of how broken it is. Your airtight claim to fair use and your eloquence in presenting the case are just the kind of things we need in order to realize change. Really great editing on the video too!

So... I'm really happy that you're exposing younger generations to some really awesome literature, and I'm going to let you finish, but your post was the least relevant in the whole thread... the *whole* thread.

I don't really understand what's broken about this. The two of you disagree on what constitutes fair use. YouTube is just doing their job, in accord with the DMCA to retain their safe harbor status. They filed a DMCA takedown notice; you filed a counter-notice under the belief that your video is fair use.

I don't see the problem here. Should YouTube just decide on their own what is fair use or not? That's for courts to decide, not YouTube. And if the two of you want to take it to court to have it decided, then that's where it's going.

It's too asymmetrical. LionsGate can repeatedly have content taken down, they are presumed to be correct, the creator of the video is presumed to be a thief, he loses access to his account -- which in some cases would cost him money. There seems to be no incentive for LionsGate to play fairr -- unless public pressure forces them. Posts on their facebook page, phone calls, and e-mails would be good. Ordering pizza for them? Not so good.

If LionsGate ends up getting hit with damages (assuming they lose the case) then I'll feel better.

So... I'm really happy that you're exposing younger generations to some really awesome literature, and I'm going to let you finish, but your post was the least relevant in the whole thread... the *whole* thread.

I prescribe Madeleine L'Engle, JRR Tolkien, and books of a similar vintage. You may even like to try some John Wyndham. For an illustration of casual racism in the early 20th century, John Buchan - who also writes good thrillers.

I don't really understand what's broken about this. The two of you disagree on what constitutes fair use. YouTube is just doing their job, in accord with the DMCA to retain their safe harbor status. They filed a DMCA takedown notice; you filed a counter-notice under the belief that your video is fair use.

I don't see the problem here. Should YouTube just decide on their own what is fair use or not? That's for courts to decide, not YouTube. And if the two of you want to take it to court to have it decided, then that's where it's going.

I don't think he's complaining about Youtube, as they're just doing what is legally required.

He's complaining that the system is broke...which it is.

Consider this situation: my TV goes missing, and I notice you have one just like it. I contact the police, and they confiscate it. You show documentation saying you purchased such a TV, and they give it back. I say you didn't prove you bought _that_ TV, and they confiscate it again. You show that you purchased that one, and they give it back. I say that you still haven't proven you didn't steal my TV and they take it again, but this time you have to sue me in court to get it back.

That's basically what's happening here: the DCMA process means that the content holder gets to decide you're infringing, and you--normally the defendent--have to expend time and resources to prove you didn't. It's ass backwards.

If anything, YouTube is worse than most other hosts, because they decided to implement their own ContentID system, and let so-called 'content owners' arbitrarily claim ownership and/or remove whatever content they want, all OUTSIDE the DMCA. Of course, you only get to be a 'content owner' if you are a large enough corporation [basically, anybody with the resources to tie up Google in court over copyright infringement for a significant amount of time].

I'm actually surprised the LionsGate representative even mentioned the DCMA.